Could Bamberg add two elected commissioners to its public works board under the 2010 act?

Plain-English summary

In 2011, the South Carolina Attorney General said a special 2010 act gave Bamberg City Council discretion to add two commissioners to its public works board by ordinance. The act used “may,” and the AG read it as permitting rather than commanding expansion. If the city added the seats, the commissioners had to be elected using the statutory procedures referenced in the act.

The general statute allowed two extra commissioners for certain small municipalities only when their public works board had been founded after 1920. The AG cited a city website indicating Bamberg's board dated to 1905 and, assuming that fact was accurate, read the special act as removing that barrier for Bamberg. It did not investigate the founding date itself.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did the special act automatically add two Bamberg commissioners? A: No. The AG said city council could choose whether to provide for their election by ordinance.

Could the city appoint the additional commissioners instead of electing them? A: The opinion said the act retained the election procedure in section 5-31-210 for any added seats.

Why did Bamberg need a special act?
A: The general provision applied to boards founded after 1920. The AG assumed the Bamberg board was founded in 1905 and read the act as removing that obstacle.

Did the AG verify the board’s founding year?
A: No. It relied on information from the city website and expressly made its interpretation conditional on its accuracy.

Background and statutory framework

Representative Bakari Sellers asked how to implement the special act. The AG compared its permissive wording with the general public works commission statute, noted the founding-date condition, and concluded that council had the option to expand the board through an ordinance followed by election.

Citations and references

The opinion quotes section 5-31-210 on the ordinary election method and discusses the special 2010 act.

Official title

“as to the proper implementation of Act 301 of 2010 (H4635, A301, R167; signed by the Governor March 31, 2010)…”

Requester

The Honorable Bakari T. Sellers, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-17-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/11/sellers-b-t-os-9354-11-17-11-city-of-bamberg-board-of-commissioners-of-public-works.pdf

Original opinion text

ALAN WILSON
A TTORN EY GENERAL

November 17, 2011
The Honorable Bakari T. Sellers
Representative, District 90
314-A Blatt Building
Columbia, South Carolina 29201
Dear Representative Sellers:
You have requested an opinion of this Office "as to the proper implementation of Act 301 of 2010 (H4635, A301, Rl67; signed by the Governor March 31 , 2010) . ... " The Act you have referenced is set forth in full below:

AN ACT TO AUTHORIZE THE CITY OF BAMBERG TO ADD TWO
ADDITIONAL COMMISSIONERS TO THE BOARD OF COMMISSIONERS OF
PUBLIC WORKS OF THE ClTY OF BAMBERG.
Be it enacted by the General Assembly of the State of South Carolina:

Commissioners may be added
SECTION 1. Notwithstanding the provisions of Section 5-31-2 I 0 of the 1976 Code, the governing body of the City of Bamberg, by ordinance, may add two additional commissioners to the Board of Commissioners of Public Works of the City of Bamberg. If two additional members are added, they must be elected as provided in Section 5-31210.

Time effective
SECTION 2.

This act takes effect upon approval by the Governor.

Section 5-31-210 of the South Carolina Code provides, in its entirety, as follows: At any election for bonds held to meet the costs of acquiring property of the character referred to in§ 5-31-610 the elector shall vote for three citizens of the city or town whose terms of office shall be respectively two, four and six years and until the general election for municipal officers next following the expiration of the short term, and until their successors are elected and qualified. The classification above designated as to the term shall be ascertained by the commissioners after election by lot. At each general election for municipal officers following the expiration of the term of the commissioner holding the short term and at every such election every two years thereafter, one such commissioner shall be elected for a term of six years and until his successor is elected REMBERT

c. D ENNIS B UILDING • POST OFFICE Box 11549 • COLUMBIA , SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Bakari T. Sellers
Page 2
November 17, 2011
and qualified. The officers so elected and their successors in office shall be known as the commissioners of public works of such municipality and by that name may sue and be sued in any of the courts of this State. In addition to the three members of the board of commissioners of public works of a municipality authorized above, the governing body of a municipality with a population of fifty thousand persons or less according to the 1980 official United States Census may provide by ordinance for the election of two additional commissioners. The new commissioners must be elected at a special election or at any general election following the enactment of the ordinance in the same manner that the other commissioners are elected. The new member receiving the highest number of votes in that election shall serve for a term of six years and the new member receiving the next highest number of votes in that election shall serve for a term of four years. Their successors must be elected in the election for municipal officers every four or six years thereafter for terms of office of six years. The members elected shall serve until their successors are elected and qualify. Vacancies in these two new positions must be filled in the same manner as other vacancies on the board of commissioners of public works are filled. The provisions of this paragraph for two additional commissioners apply only to boards of commissioners of public works founded after 1920. By its plain language, the second paragraph of section 5-31-210 permits action similar to that allowed by Act 301 of 2010, but it restricts such action to municipalities with a population of fifty thousand or less (according to the 1980 census) in which the board of commissioners of public works was founded after 1920. According to the website for the City of Bamberg, the Board of Commissioners of Public Works for the City of Bamberg was formed in 1905. Assuming this information is accurate, it appears the effect of Act 301 is to remove this barrier to allowing the City of Bamberg to take advantage of the second paragraph of section 5-31-210. 1 Because Act 301 expressly retains the election procedures set forth in section 5-31-210 and retains the same non-mandatory language, it appears the Act simply gives discretion to the governing body of the City of Bamberg as to whether that body will provide for the election of two additional commissioners. Very truly yours,

Dana E. Hofferber
Assistant Attorney General
REYJiJWED AND APPROVED BY:

I

/'

Robert D. Cook
Deputy Attorney General

As always, we have refrained from investigation into issues of fact and have presumed that all statutes are valid. Our analysis in this opinion is limited to the specific question that you have asked.